Thursday, January 21, 2021

Five Things You Should Know About Divorce and the Military

Promoted Partner Content from the Law Offices of Borton Petrini LLP

By Jeanne W. Murray

1)  Knowing Where to File Can Be Difficult. Military people may have several places that they call home – a home of record, the place where they currently live, and sometimes another place where their spouse and children live. So, where is the right place to file for divorce?  The answer depends on where your “domicile” is, and where your spouse’s is. In California, one party must be a “resident” of the state for 6 months immediately prior to the filing of the divorce petition. If a member of the military maintains a residence in California, but claims domicile elsewhere, this question can get complicated. If a couple has children, there is another consideration regarding which state has jurisdiction to determine custody.

2)  Active Duty Service Members Can Get Custody of Children. In California, the overriding principle in determining child custody is the “best interests of the children.” There are many things the courts look at to determine a child’s best interest, including continuity and stability of relationships, ability of each parent to cooperate with the other parent, and other factors. At the same time, California law grants certain protections to deployed men and women serving in the armed forces. For example, California Family Code Section 3047 guarantees that any change in custody required as a result of a military member’s deployment is deemed a temporary change that will be reconsidered when the military member returns home.

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3)  Military Retirement Benefits Can Be Split Even for a Short Marriage. There is a myth in the military that a spouse is only entitled to a share of the military member’s retirement benefits if the marriage has lasted over 10 years. In fact, military retirement benefits may be split between spouses in a marriage of any length. The share the spouse is entitled to depends on the length of the marriage and how it overlaps with military service.

4)  The SCRA Applies to Divorces. The Servicemember’s Civil Relief Act protects military members in legal proceedings, among other legal protections. For example, if requested by a service member who meets certain criteria, the court shall stay the divorce proceedings for 90 days in order to give the service member a fair opportunity to respond. The service member may apply for additional stays after the initial 90-day automatic stay.

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5)  A Divorced Spouse May Be Eligible for Continued Health Care. Generally, a military spouse’s military benefits end on the date of the divorce judgment. However, the spouse may be eligible for continued TRICARE coverage if they meet certain length of service, length of marriage, and overlapping marriage and service criteria. There is also an option called the Continued Health Care Benefit Plan under which eligible former spouses may, for a cost, obtain health insurance coverage.

A divorce is a hard process to navigate for any person, whether they are filing or responding to a divorce petition. The issues can be further complicated by military status. As experienced military family law attorneys, we can help you through the process with the best result possible for you and your family.

Legal Disclaimer: The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.
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